No Serious Error Results In Denial Of Petition For Writ Of Mandamus
IN RE: WHIRLPOOL CORP. (March 3, 2010)
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LG Electronics brought suit against Whirlpool Corp., alleging that it infringed a trademark in a dryer. During the course of the litigation, LG requested the production of communications between Whirlpool lawyers and Whirlpool's outside advertising agencies. Whirlpool objected on two grounds: because the communications were privileged, asserting that the advertising agency employees were de facto employees of the company, and because the company and the agencies shared a common legal interest. Whirlpool appealed and filed a writ of mandamus.
In their opinion, Chief Judge Easterbrook and Judges Wood and Evans dismissed the appeal and denied the writ. Whirlpool alternatively appealed and filed for mandamus because the issue of the appealability of orders dealing with the attorney-client privilege was pending before the Supreme Court in Mohawk Industries. The Supreme Court has now ruled -- and concluded that such orders are not appealable as collateral orders. The Court thus dismissed the appeal. On a petition for a writ of mandamus, the Court stated that Whirlpool must show that the order will not be reviewable at the end of the case and is patently wrong. The Court noted that the district court gave the Whirlpool's arguments careful consideration and issued a "lengthy and thoughtful" decision. The Court found nothing in Whirlpool's petition that convinced it that the district court made a serious error.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select